COVID-19 Alters Medical Malpractice Liability Landscape

5-minute read

If you’re a physician, you’re no doubt waiting for the other shoe to drop right about now.

Although an expected flood of COVID-19 lawsuits against businesses never materialized, the healthcare world, including doctors, is bracing for a potential torrent of coronavirus-related negligence cases.

With more than 500,000 deaths in the United States alone, the lawsuits to come may focus on a range of purported wrongs beginning with delayed or missed COVID-19 diagnoses.

Other possibilities include delayed immunizations, failure to follow proper infection control procedures; improper rationing of resources; and failure to spot medical contraindications for administering COVID-19 vaccines.

The COVID-19 pandemic has spurred insurers to look more closely at a number of items before issuing medical malpractice coverage.

How serious is this threat? A COVID-19 litigation tracking website showed only 14 COVID-related medical negligence cases had been filed across the county through Jan. 8. The cases mostly involved long-term care facilities. But that doesn’t mean the plaintiffs lawyers won’t decide at some point to see how juries might react, especially after the pandemic has subsided and we all forget about the superhuman effort by frontline healthcare workers fighting to save COVID patients’ lives.

The good news is that more than 30 states have adopted laws or executive orders shielding healthcare providers and other businesses from liability suits related to prevention and treatment of COVID-19.

Federal legislation that would do the same has been promoted in Washington, D.C., but isn’t expected to gain traction.

Underwriting scrutiny

Insurance companies, of course, are paying close attention to all of this.

Underwriters are now looking closely at a number of items when considering whether to provide a healthcare practitioner with medical malpractice insurance coverage.

“When we review an opportunity or an exposure pertaining to a healthcare facility or healthcare practitioner, we’re looking for numerous factors,” Natasha Prasad, an underwriting specialist at CNA, told Insurance Business. “We want to know what services are being provided and how many patients a facility would typically see. We want to know that it’s a well-run facility, with protocols, policies and procedures in place to ensure that appropriate standards of care are being met. We want to know that those individual practitioners are fully licensed and have the expertise to provide the services they’re rendering.”

Does some of that sound like the usual litany? Yes, it does. But the level of scrutiny is more intense than ever.

There are steps physician practices can take to reduce their liability risks.

A good start includes creating a timeline documenting how COVID-19 pandemic events unfolded in your practice and community. This timeline should include problems in securing personal protective equipment, infection rates in your area, and any new guidelines you adopted at particular points in time.

What else?

Well, as most any physician practice management outfit can tell you, having the right medical malpractice policy is critical.

What Does ‘Med-Mal’ Cover?

The best medical malpractice insurance company may not necessarily be the one that offers the lowest premium, but the one that offers best value for money.

That includes getting more for your premium than the payout of a claim. The better polices will come with knowledgeable claims managers and the assignment of attorneys who specialize in malpractice defense to guide and defend you.

If you’re buying medical malpractice insurance for the first time, you should know that these policies also pay damages if you’re found liable. Covered costs include:

  • Those attorneys’ fees and court costs.
  • Arbitration costs.
  • Settlement costs.
  • Punitive, as well as compensatory, damages.
  • Medical damages.

Another important point to remember, especially amid this pandemic: medical malpractice claims can be filed years after the disputed treatment took place.

There are two types of policies you can obtain: A “claims-made” policy will only provide coverage if the policy is in effect both when the treatment took place and when a lawsuit is filed.

An “occurrence” policy will cover any claim for an event that took place during the period of coverage — even if the claim itself is filed after the policy lapses. Some claims-made policies will provide a period of “tail” coverage that extends coverage for a set amount of time — e.g., five years — after the policy ends. Medical professionals may want to purchase tail coverage when they change insurance policies, take a new position or retire.

The Mahoney Group, based in Mesa, Ariz., is one of the largest independent insurance and employee benefits brokerages in the nation. As an employee-owned organization, we’ve been protecting what’s yours since 1915. Contact us at or 480-730-4920.

This article is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel or an insurance professional for appropriate advice.


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